How to prevent assets in a will from being passed to a person suffering from incurable dementia?

Question

Triggered by this question, a similar one. How can I write a will such that if a beneficiary is suffering from senile dementia at the time I die, they are passed elsewhere? The situation may well arise if I have previously succumbed likewise, and so cannot revise my will. My siblings are of a similar age, and share my genetic inheritance. I would want the money to go to their children, if they are beyond considering for themselves whether to enter into a deed to reassign their inheritance at the time of my death.

Is there any reason it can't be handled in the same way as survivorship? Specify a condition which, if satisfied, means that the beneficiary is to be treated as if they had pre-deceased me.

Answer 1

Conditions stated in a will should be objectively verifiable, to avoid later ligation of the "yes he is / no he isn't" type. In this case, it would appear that your concern is over the beneficiary not actually being competent to take care of themselves. The courts often have to make that judgment, when a party seeks conservatorship over an adult. So it seems that the situation you are addressing can be summarized by saying "has not been found legally incompetent". You should discuss with your attorney what the exact wording ought to be, and also whether that describes your actual intents. For example, the description of disqualification probably should not include execution of a temporary power of attorney for a specific purpose, nor would it include a DNR order. Hiring an attorney who knows the terminology would steer clear of vague or mistaken terms.

Answer 2

I agree that bright lines in wills are good. But I think that requiring a judicial declaration of incompetence may be too stringent. In my experience, many demented people's business is handled by a power-of-attorney. If that is the case, then requiring the person to have been found incompetent will defeat your intentions.

Obviously, you should talk to your attorney. (If your relatives are the sort who would get a diagnosis from a doctor, you might also as your attorney about using that as the standard. Many of the demented people I know have such diagnoses, but they not be typical.)

Depending on what your family is like, you might also consider talking to your relatives now, while everyone is still healthy, and your stuff is not yet up for grabs. Tell them what you are thinking, and why. If you do it right, you might be able to head off any trouble. And if you are really lucky, they might suggest standards you can put in the will that will make them comfortable.